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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

In U.S. National Park Service, Santa Monica Mountains Recreation
Area, Agoura Hills, California, 49 FLRA 1596 (1994) (NPS, Agoura
Hills), the Authority granted the Union's application for review of the
Regional Director's (RD's) Decision and Order on Objection and Determinative
Challenged Ballots(1) as to the following issues:

(1) Whether two employees who were absent from the worksite on
the day of the election because they were away on training were improperly
deprived of the opportunity to vote and, if so, whether the election should be
set aside; [and] (2) Whether, noting the definition of "firefighter" under
section 7103(a)(17) of the Statute, the individual whose ballot challenge was
sustained by the [RD] is a supervisor of a unit which includes firefighters
within the meaning of section 7103(a)(10) of the Statute. NPS, Agoura
Hills, 49 FLRA at 1597. Subsequently, the Union filed a supplemental
brief and the Activity filed a brief in opposition to the Union's application
for review.

For the reasons set forth below, we remand the case to the Regional
Director to: (1) reconsider and explain, based on record evidence, his
conclusion on the issue whether the Activity acted in bad faith when it
deprived two employees of the opportunity to vote; and (2) determine
whether employee Charles Whitman devotes a preponderance of his employment time
to exercising supervisory authority within the meaning of section 7103(a)(10)
of the Statute.

II. Background and Acting Regional Director's Decision

By direction of the RD, an election was conducted among the
nonprofessional employees of the Activity. Employees assigned to two locations
received mail ballots. All other eligible employees were given the opportunity
to vote by manual ballot on September 23, 1993.(2) Of the 35 valid votes counted, 17
were cast for the Union and 15 were cast against exclusive recognition. The
ballots cast by three employees were challenged by the RD's agent on the basis
that they were supervisors and, therefore, were not eligible to vote in the
election. The challenged ballots were sufficient in number to affect the
results of the election.

The Activity filed a timely objection to the procedural conduct of the
election. In support of its objection, the Activity submitted the names of
several employees who allegedly should have been, but were not, afforded an
opportunity to vote.

A. Objection to the Election

As relevant here, the RD found that two employees who were on training
assignments away from their regular work stations on September 23, the
date of the manual balloting, were improperly deprived of the opportunity to
vote.(3)

The RD found that two questions--whether accommodation must be made for
all eligible voters and when an election must be rerun because eligible voters
have been deprived of the opportunity to vote--had not been ruled on under the
Federal Service Labor-Management Relations Statute (the Statute) or under
Executive Order 11491. In deciding these questions, the RD considered the
standard for conducting elections established by the National Labor Relations
Board (NLRB) under the National Labor Relations Act.

Adopting and relying on the standard set forth in Republic
Electronics, Inc., 266 NLRB 852 (1983) (Republic Electronics)
and Versail Manufacturing, Inc., 212 NLRB 592 (1974) (Versail
Mfg.), the RD stated that an election will be set aside on the basis of an
objection to the conduct of the election where: (1) a party to the
election (the agency or activity, the union, or an Authority agent) causes an
employee to miss the opportunity to vote; (2) the vote could be
determinative of the outcome of the election; and (3) the employee was
deprived of the opportunity to vote through no fault of his or her own. The RD
also stated, however, that where the objection is filed by the party
responsible for the deprivation, the objection will be found not to have merit
if there is evidence that the objecting party acted in bad faith in depriving
an employee of the opportunity to vote.

Applying this standard, the RD found that: (1) the Activity sent
the two employees on training assignments away from their regular work stations
on the day of the election and thus caused them to miss the opportunity to
vote; (2) the votes of the two employees could be determinative of the
outcome of the election; and (3) the two employees were deprived of the
opportunity to vote through no fault of their own. The RD also found that there
was no evidence that the Activity, the objecting party, acted in bad faith in
depriving the employees of the opportunity to vote. The RD sustained the
Activity's objection and found that the election must be rerun if, after
outstanding challenged ballot issues were resolved, the votes of the two
employees could be determinative of the results of the election.

B. Challenged Ballot

As relevant here,(4) the RD found that Charles Whitman is a park ranger who,
during the fire season (May-November), is in charge of a crew of three seasonal
workers, also classified as park rangers. During this period, Whitman trains
his crew, assigns work to, and often works side by side with, the crew, and
evaluates them individually on a monthly basis. Whitman's year-end appraisals
of his crew members are reviewed by the Fire Manager, who uses the appraisals
to decide whether the employees are recommended for rehire.

The RD found that Whitman "act[s] independently in evaluating
employees' performance and preparing [their] year-end review" and that his
evaluations are relied on by upper-level management "in the hiring process, a
supervisory indicia described in section 7103(a)(10) of the Statute."(5) RD's Decision at 6. The RD
concluded that Whitman is a supervisor in charge of the crew of seasonal
employees during the fire season. The RD rejected the Union's argument that
Whitman is a firefighter and, as such, is a supervisor under section
7103(a)(10) only if he spends a preponderance of his employment time exercising
supervisory authority. The RD concluded that Whitman is "more akin to those
[F]ederal employees who are not firefighters and to those [F]ederal employees
who have subordinates on a seasonal basis" and, therefore, it is not
appropriate to apply the specialized definition of section 7103(a)(10) to
Whitman. Id. at 10. The RD did not discuss whether Whitman or any
member of the crew of seasonal employees is a "firefighter" within the meaning
of section 7103(a)(17) of the Statute.

Finally, relying on United States Department of Agriculture, Forest
Service, Intermountain Region, Challis National Forest, 23 FLRA 349
(1986) (Challis National Forest), the RD concluded that although Whitman
exercises supervisory authority only during the fire season, Whitman was
ineligible to vote in this case because the election took place during that
season.

III. Positions of the Parties

A. Union

1. Opportunity of Eligible Employees to Vote

According to the Union, the Activity's bad faith in depriving two
employees of the opportunity to vote is established because the Activity knew,
before the RD ordered the election, that the two employees would be absent and
failed to inform the RD about the two employees. The Union also argues that
resolution of the issue of the Activity's bad faith warranted a hearing.

2. Meaning of the Term "Firefighter"

The Union contends that Whitman is a firefighter within the meaning of
the Statute and that, therefore, it is necessary to determine whether he
devotes a preponderance of his employment time to exercising supervisory
authority under section 7103(a)(10) of the Statute. The Union also contends
that the RD erred in finding that Whitman exercises supervisory authority under
section 7103(a)(10) because the RD "made no conclusive finding that Whitman's
evaluation is determinative in the rehire of seasonal firefighters." Brief
at 2. Finally, the Union argues that resolution of this issue warranted a
hearing.

B. Activity

1. Opportunity of Eligible Employees to Vote

The Activity asserts that it did not act in bad faith when it sent the
two employees on training assignments and notes that the RD did not request
information prior to the election as to the availability of any employees to
vote.

2. Meaning of the Term "Firefighter"

The Activity argues that Whitman is classified as a park ranger and
that the RD was correct in finding that he is not a firefighter for purposes of
determining whether he is a supervisor under the Statute. The Activity asserts
that the RD properly concluded that Whitman is a supervisor during the seasonal
periods in which he is in charge of a fire crew.

IV. Analysis and Conclusions

A. Opportunity of Eligible Employees to Vote

The accommodation of eligible voters and the rerunning of elections
when eligible voters have been deprived of the opportunity to vote are issues
that have not previously been addressed under the Statute or Executive Order
11491. On consideration, in agreement with the RD, we adopt the standard of the
NLRB and we will apply the standard to this and future representation election
cases.(6)

Under this standard, an objection alleging that eligible employee(s)
have been deprived of the opportunity to vote will be sustained and an election
set aside if: (1) a party to the election caused the employee(s) to miss
the opportunity to vote; (2) the vote(s) of the employee(s) would be
determinative; and (3) the employee(s) were deprived of the opportunity to
vote through no fault of their own.(7) However, if the objection is filed by the party responsible
for the deprivation, the objection will be dismissed if the objecting party
acted in bad faith in depriving the employee(s) of the opportunity to vote.

The RD found that: (1) a party to the election caused the two
employees on training assignments to miss the opportunity to vote;
(2) their votes could be determinative of the outcome of the election; and
(3) the employees were deprived of the opportunity to vote through no
fault of their own. These findings are undisputed. However, the RD provided no
reasons for his disputed finding that the Activity did not act in bad faith
when it deprived the two employees of the opportunity to vote. For example, the
RD did not discuss what weight he gave to the undisputed finding that the
training assignments that deprived the two employees of the opportunity to vote
had been approved by the Activity before the RD ordered the election, and the
Activity did not notify either the Union or the RD "so that arrangements to
accommodate this absence could be made." RD's Decision at 5.

Accordingly, we remand this case to the RD to reconsider and explain,
based on record evidence, his conclusion on the issue whether the Activity
acted in bad faith when it deprived two employees of the opportunity to vote.
In carrying out this direction, the determination whether further investigation
or a hearing is warranted will be made by the RD. SeeU.S. Department
of Agriculture, Forest Service, Apache-Sitgreaves National Forest,
Springerville, Arizona, 47 FLRA 945, 951-52 (1993). If the RD
determines that the Activity did not act in bad faith, the Authority's standard
set forth above for setting aside the election will have been met, but the
election will only be set aside if the votes could be determinative. If the RD
determines that the Activity did act in bad faith, then the objection should be
overruled, in which case the election results will be determined by opening and
counting the ballots of Peleszak and Stout and, if the RD determines that he is
not a supervisory firefighter, also the ballot of Whitman.

B. Meaning of the Term "Firefighter"

We agree with the RD's finding that Whitman exercises supervisory
authority within the meaning of section 7103(a)(10) of the Statute over
seasonal employees during the fire season.(8) The Union has not shown that any of the facts relied on by
the RD in making this finding were erroneous; the Union merely disagrees with
the RD's findings of fact, evaluation of the evidence, and conclusion based on
that evaluation. Social Security Administration, 49 FLRA 1391, 1396
(1994).

However, we find that the RD erred in failing to find that Whitman and
the crew members are firefighters, as defined in section 7103(a)(17), and, as a
result, in failing to apply the preponderance test set forth in the portion of
section 7103(a)(10) to determine Whitman's supervisory status. Section
7103(a)(17) of the Statute defines the term "firefighter" as "any employee
engaged in the performance of work directly connected with the control and
extinguishment of fires or the maintenance and use of firefighting apparatus
and equipment[.]" We conclude that this same meaning applies to the term
"firefighters," as used in the definition of the term "supervisor" under
section 7103(a)(10) of the Statute.

The RD found, and it is undisputed, that during the fire season,
Whitman assigns work to and trains his crew in the safe use of fire equipment,
and works side by side with his crew in performing duties that relate to fire
suppression. Accordingly, we find that Whitman and the crew members are
firefighters within the meaning of section 7103(a)(17) of the Statute, and the
issue of Whitman's supervisory status must be determined based on the
definition of supervisor in that portion of section 7103(a)(10) of the Statute
which concerns a bargaining unit including firefighters.

As the RD did not reach this issue, we remand the case to the RD to
determine whether Whitman devotes a preponderance of his employment time to
exercising supervisory authority. In making that determination, we direct the
RD to take into account only Whitman's duties during the fire season while
Whitman is in charge of seasonal employees. SeeChallis National
Forest. Whether Whitman's ballot will be opened and counted will be decided
by the RD's determination, subject to any application for review.

V. Order

We remand the case to the Regional Director to: (1) reconsider and
explain, based on record evidence, his conclusion on the issue whether the
Activity acted in bad faith when it deprived two employees of the opportunity
to vote; and (2) determine whether employee Charles Whitman devotes a
preponderance of his employment time to exercising supervisory authority within
the meaning of section 7103(a)(10) of the Statute. The Regional Director shall
thereafter issue a new decision and order.

3. On July 16, the Activity had
approved training for one employee to be conducted in San Francisco from
September 21 through 24, and on August 19, the Activity had
approved training for the other employee to be conducted in Hawaii from
September 12 through 24.

4. Although the ballots of three
employees were challenged, the RD's finding that ballots of two of the
employees (Christine Peleszak and Ted Stout) should be opened and counted was
not disputed.

'supervisor' means an individual employed by an agency having
authority in the interest of the agency to hire, direct, assign, promote,
reward, transfer, furlough, layoff, recall, suspend, discipline, or remove
employees, to adjust their grievances, or to effectively recommend such action,
if the exercise of the authority is not merely routine or clerical in nature
but requires the consistent exercise of independent judgment, except that,
with respect to any unit which includes firefighters or nurses, the term
'supervisor' includes only those individuals who devote a preponderance of
their employment time to exercising such authority[.] (Emphasis added.)

7. Although not an issue in this case,
we would not, for example, set aside an election where an employee was unable
to vote because of sickness or any other unplanned occurrence which, while
beyond the control of the employee, was not caused by one of the parties or the
FLRA. SeeVersail Mfg., 212 NLRB at 593.

8. The RD was correct in finding that
seasonal supervisors are excluded from the bargaining unit and ineligible to
vote in an election that takes place during the period in which they supervise
seasonal employees. SeeChallis National Forest.